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  • Dawson-Miller, C.J
  • Mullick, J.
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  • Dawson-Miller, C.J
  • Mullick, J.
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Smart Summary

Structured Summary of the Opinion (Mullick, J.)

Factual and Procedural Background

On 10 June 1905 the 1st and 3rd party defendants objected before a Settlement Officer (under Chapter 10, Act 8 of 1885) that an area of land (18 bighas 3 cottahs 16 dhurs) had been wrongly recorded as the plaintiffs' lakhiraj estate. The Settlement Officer upheld the objection and a final record was published on 12 January 1906 reflecting that decision. On 11 January 1907 the plaintiffs sued before the Munsif of Purnea seeking a declaration that the entries in the finally published record were incorrect. The Munsif decreed in favour of the plaintiffs. The District Judge, however, dismissed the suit on 30 November 1908, holding initially that a civil suit would not lie and that the remedy lay by application under Section 106 of the Bengal Tenancy Act; the High Court of Calcutta disagreed and remanded the case for a decision on the merits. On remand the District Judge confirmed the Munsif's decree, finding (a) title by purchase (in 1885) to 9 bighas 10 cottahs 16 dhurs (part of a lakhiraj estate purchased from Mr. Beaufort/4th party defendants), and (b) adverse possession for more than 12 years giving a complete title to the plaintiffs as to the remainder. A subsequent second appeal to the High Court (a single judge) disagreed with the District Judge and dismissed the suit on the ground that it was barred by limitation, relying in part on an earlier settlement record (1888–1889) that recorded the land as patni tenure and occupied by the 2nd party defendants.

Legal Issues Presented

  1. Whether a civil suit for a declaration that the entries in the finally published Record of Rights of 1906 were incorrect was barred by limitation because an earlier finally published record (1888–1889) had recorded the land adversely.
  2. Whether a plaintiff aggrieved by a second finally published Record of Rights may obtain a declaration in respect of the second record without first displacing prejudicial entries in a prior finally published record.
  3. Whether a party who has acquired title by adverse possession is obliged to bring a suit within six years from the date when their prescriptive title matured, or whether they may sue upon a fresh invasion (the 1906 record) at the time it occurs.
  4. Whether the relief sought (a declaration under Section 42 of the Specific Relief Act and Section 111-A of the Bengal Tenancy Act) is competent in the civil court rather than being exclusively a matter for revenue proceedings under Section 106 of the Bengal Tenancy Act.

Arguments of the Parties

Appellants (Plaintiffs)

  • The plaintiffs sought a declaration that the entries in the finally published Record of Rights of 1906 were incorrect and relied on Section 111-A of the Bengal Tenancy Act as conferring the right to obtain such a declaration through the remedy in Section 42 of the Specific Relief Act.
  • As to part of the land (9 bighas 10 cottahs 16 dhurs) they claimed title by purchase (made in 1885). As to the remainder they claimed title by adverse possession matured before publication of the 1906 record.
  • The plaintiffs argued that the 1906 publication constituted a fresh invasion of their rights and therefore time for a suit should be counted from that publication; thus their suit (instituted in January 1907) was within the statutory period.

Respondents (Defendants and their Counsel)

  • The respondents contended that the plaintiffs' claim was barred by limitation because an earlier finally published record (1888–1889) already recorded entries adverse to the plaintiffs, and the plaintiffs failed to challenge that earlier record within six years.
  • The respondents' counsel suggested the case of Akbar Khan v. Turaban supported the proposition that time against the plaintiffs began from publication of the earlier record, thus barring the later suit.
  • It was also argued (earlier in proceedings before the District Judge) that the proper remedy was a revenue application under Section 106 of the Bengal Tenancy Act, not a civil suit for declaration.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Akbar Khan v. Turaban Considered in relation to whether time runs from the earlier record or whether a fresh invasion gives rise to a fresh cause of action. The court examined the case and concluded it does not support the broad proposition that a party aggrieved by a second record cannot sue without first displacing entries in the earlier record; Akbar Khan is instead authority that a plaintiff can sue for each successive invasion, though in that specific case no fresh invasion was found.
Ilahi Bakhsh v. Harnam Singh Recognized the principle that a plaintiff may sue upon each successive invasion of his right. Cited with approval by the Allahabad Court (per the opinion) and relied upon by the present court as supporting the principle that time can run from each invasion.
Robert Skinner v. Shankar Lal Same principle — entitlement to sue upon successive invasions of a right. Cited with approval and used to support the proposition that the plaintiffs could sue in respect of the 1906 invasion.
Brij Bihari Singh v. Sheo Shankar Jha Recognition of the principle permitting suit for each successive invasion. Relied upon by this Court as consistent authority for allowing suits based on fresh invasions.
Ramji Ram v. Sadhu Saran Lal Same principle as above (successive invasions may ground separate suits). Also cited in support of the court's view that the 1906 publication could give rise to an independent cause of action.
Amir-ud Din v. Saidur Rahman Held that a plaintiff cannot, by changing form, count a fresh period of limitation if the real object is to obtain a declaration under Section 111-A of the Bengal Tenancy Act. The court held this authority inapplicable to the present facts, noting that it did not bear on a case where a fresh invasion occurred in 1906.
Reves v. Butcher Applied English statute-of-limitation principles to debts payable by instalments; omission to sue within six years of first default bars recovery of the whole debt. The court found this line of authority (including Hemp v. Garland) inapplicable to the present case, which concerns successive invasions of property rights, not instalment-debt recovery under English law.
Hemp v. Garland Earlier English authority underpinning the instalment-debt limitation principle applied in Reves v. Butcher. Also treated as irrelevant to the facts and legal context of the present tenancy/possession dispute.

Court's Reasoning and Analysis

The court proceeded step by step, applying statutory provisions and precedent to the facts as found by the lower courts:

  1. Identifying the precise relief sought: the plaintiffs in terms sought a declaration that the Record of Rights of 1905–06 was incorrect; they did not in their pleading directly seek to alter the Record of Rights published in 1888–89.
  2. Statutory basis: the court noted that Section 111-A of the Bengal Tenancy Act and Section 42 of the Specific Relief Act together clearly empowered plaintiffs to obtain a declaration of the sort they sought in respect of a finally published record.
  3. On limitation, the court analysed whether time should be counted from the publication of the earlier record (1888–89) or from the later 1906 publication. It considered the respondents' reliance on Akbar Khan v. Turaban and other authorities, and examined those cases closely.
  4. Principle of successive invasions: the court concluded (after surveying Akbar Khan and several other cases from Allahabad and this Court) that a plaintiff is entitled to sue upon each successive invasion of his rights. Where the second publication (1906) in fact constituted a fresh invasion of the plaintiffs' rights, time could properly be counted from the date of that invasion.
  5. Application to the facts:
    • As to the portion of the land for which the plaintiffs established title by purchase (the first half), the court held the suit was within time if limitation began to run from the 1906 publication; therefore the single judge's finding that the plaintiffs were barred because of the 1888–89 record was erroneous.
    • As to the remainder (the portion claimed by adverse possession), the court observed the plaintiffs had not been obliged to sue earlier for a declaration of prescriptive title; at the time of the 1888–89 record their adverse title had not been perfected and the earlier entry was therefore not incorrect at that time. The cause of action in respect of the 1906 entry arose when that record was published.
  6. The court distinguished other authorities relied upon by the respondents: it found Amir-ud Din v. Saidur Rahman inapplicable to these facts and regarded Reves v. Butcher and Hemp v. Garland as founded on distinct English limitation rules concerning instalment debts (and therefore not apposite). The court also referenced Article 75 of the Limitation Act but concluded its principle had no bearing on the present dispute.
  7. Conclusion of analysis: because there was a fresh invasion in 1906 and the plaintiffs sued within six years of that publication, the claims were not time-barred; the single judge's dismissal on limitation grounds was incorrect.

Holding and Implications

Holding: The court concluded that the plaintiffs' suit was not barred by limitation and that the judgment of the single judge dismissing the suit on that ground was incorrect. Accordingly, the court set aside the judgment of the learned judge of this Court and allowed the appeal.

Direct consequences and remedial result:

  • The appeal is decreed and the judgment of the single judge is set aside.
  • The plaintiffs' suit, having been brought within six years of the publication of the Record of Rights of 1906, is held to be within time in respect of both portions of the land (the portion claimed by purchase and the portion claimed by adverse possession).
  • The appeal is allowed with costs in all courts.

Broader implications: The opinion reiterates and applies the principle that a plaintiff may sue upon each successive invasion of his rights, but the court did not purport to establish a novel legal principle beyond applying existing authorities to the facts. No explicit statement was made that this decision creates a new precedent beyond its application to the present facts.

End of summary — material in this document is limited to and derived from the provided opinion of Mullick, J. (with Dawson-Miller, J. concurring as noted in the opinion).

Show full summary ...

    Latafat Hussain v. Kaliker Nand Singh .

    Mullick, J.:— On 10th June, 1905 the 1st and 3rd party defendants made an objection before a Settlement Officer conducting a settlement under Ch. 10. Act 8 of 1885, to the effect that the lands in suit, measuring an area of 18 bighas, 3 cottahs 16 dhurs had been wrongly recorded as the lakhiraj estate of the plaintiffs. The objectors succeeded before the Settlement Officer, and on 12th January, 1906 a final record was published containing entries in accordance with the Settlement Officer's decision. On 11th January, 1907 the suit out of which the present appeal arises was instituted before the Munsif of Purnea, for a declaration that the entries in the finally published record with regard to the lands in suit were incorrect. The suit was decreed by the Munsif, but was dismissed on appeal by the District Judge on 30th November, 1908. There was then a second appeal to the High Court of Calcutta, with the result that the case was remanded to the District Judge for a decision upon the merits. I have to explain here that the District Judge who disposed of the case on 30th November, 1908 was of opinion that no civil suit for a declaration, such as had been given to the plaintiffs by the Munsif, would lie and that the proper remedy of the plaintiffs was by way of an application under Section 106 of the Ben, Ten. Act, for the settlement of a dispute to the revenue officer. The High Court of Calcutta held that this position of the law had bee a misconceived by the learned Judge and that a suit in the civil Court would lie to declare that the entries in the finally published record were incorrect. When the case went back to the District Judge on remand, the decree of the Munsif was confirmed.

    2. The learned District Judge found that in regard to 9 bighas 10 cottahs 16 dhurs of the land in suit the plaintiffs had established a title by purchase made in 1885, shewing that this area was part of the lakhiraj estate of one Mr. Beaufort. As regards the remainder of the land the learned Judge found that the plaintiffs had been in adverse possession for more than 12 years and that they had, at the time that the finally published record of 1906 was published, acquired a complete title as against the defendants. Against this decree of the learned District Judge a second appeal was again preferred to the High Court. That appeal came before a learned Judge of this Court sitting alone for the hearing of second appeals and the learned Judge of this Court, disagreeing with the learned District Judge dismissed the whole suit on the ground that it was barred by limitation. It appears that an issue on the question of limitation was raised in the Court of the Munsif, but there was no district finding upon it. In the Court of the District Judge who last heard the case it was raised somewhat faintly, and the learned Judge came to the conclusion that as the suit had been brought within 12 years of the disposal of the objection case before the Settlement Officer in 1905 the suit was within time. The learned Judge of this Court however has gone upon a different ground and in order to consider his objection to the plaintiffs' suit it is necessary to take it in two parts. With regard to that portion in respect of which the plaintiffs have established their title by purchase from the 4th party defendants, the learned Judge finds that in 1888 or 1889 a survey and settlement under Ch. 10, Bengal Tenancy Act, as it then stood was made by a Revenue Officer and that in the course of that settlement the land in dispute was recorded as belonging to the patni tenure of the first party defendants in Mauza Chandi Katwa and that it was in the actual possession of the second party defendants as occupancy raiyats. In the opinion of the learned Judge of this Court the plaintiff having failed to bring a suit to correct the entry in the finally published settlement record of 1888-1889 within six years of publication, it is no longer competent to them to bring a suit for a declarations that the record of 1906 is wrong.

    3. The contention is that as the prayer is the present suit substantially involves a correction of the record of 1888-1889, the plaintiffs cannot be indirectly allowed to obtain a declaration which is barred by the law of six years' limitation. Now this raises the question as to what is the precise scope of the present suit. The present suit does not in any way concern itself with the entry in the Record of Rights published in 1888-1889. It in terms only seeks for a declaration that the record of 1905-6 is incorrect. Section 111-A of the present Bengal Tenancy Act clearly confers the right to the plaintiffs to obtain a declaration in the terms of Section 42 of the Specific Relief Act. Is there anything in the law which compels the plaintiffs to ask for a declaration in respect of the previous record before they can obtain the reliefs they now seek? The learned vakil for the respondents before us has been unable to show any direct authority in support of his contention, but he has suggested that the case of Akbar Khan v. Turaban(1) is authority for the proposition that in the present case time began to run against the plaintiffs upon the publication of the first record. I have carefully examined this case and I can find nothing in it which supports the general proposition that where there are two consecutive finally published Records of Rights, it is incompetent to a party aggrieved by the second to ask for a declaration in respect of that second record without first displacing any prejudicial entries in the first record. On the contrary this case is authority for the proposition that a plaintiff seeking a declaration is entitled to sue upon each successive invasion of his right, and the learned Judges of the Allahabad Court cite with approval two other judgments of their Court recognizing this principle, namely, Ilahi Bakhsh v. Harnam Singh(2) and Robert Skinner v. Shankar Lal(3). The same principle has been recognized in this Court in Brij Bihari Singh v. Sheo Shankar Jha(4) and Ramji Ram v. Sadhu Saran Lal(5). In each case it must be seen whether the invasion upon which the plaintiffs seek to base their cause of action was in fact an invasion or not. In Akbar Khan's case above cited their Lordships of the Allahabad High Court dismissed the suit on the ground that where an adverse entry was made in 1895 in a settlement record and the plaintiff in 1903 failed to get that entry corrected by the Revenue Officer, such subsequent failure did not constitute a fresh invasion of his right. But that is not the case here. Here it is clear that in 1906 a fresh invasion of the plaintiffs' right occurred. They may have had a number of reasons for not pursuing their remedies in respect of the previous entry.

    4. The entry did not create or extinguish any rights. It did not affect their title. It is found that they were in possession and there was no reason whatsoever why they should put the law in motion, for an owner in possession is not bound to sue upon every challenge to his rights. On the other hand in 1906 if they were of opinion that it was to their advantage to rebut the presumption created by the entry adverse to them, then although that entry in terms repeated the contents of a previous entry, there does not seem to be anything in the law which debars them from counting time from the date of the second entry. It is admitted that the suit is within the period of limitation under Article 120 if time began to run from 12th January, 1906. The case is not similar to Amir-ud Din v. Saidur Rahman(6), where it was held that a plaintiff cannot by changing the form of his suit count a fresh period of limitation if in fact the real object of his suit is to obtain a declaration such as is contemplated by Section 111-A of the Ben. Ten. Act. That case has no bearing on the facts of the present case. Therefore if the plaintiffs' title is not extinguished and it being in possession they were not called upon to bring a suit to declare their possession, then I see no reason why they should not be allowed to get a declaration that the Record of Rights of 1906 was incorrect. The learned Judge of this Court has relied upon the case of Reves v. Butcher(7). That case followed Hemp v. Garland(8). Both those cases were based upon an English Statute of Limitation in regard to the recovery of debts the payment of which had been contracted for in instalments.

    5. It was held that if the contract was that upon the failure to pay any instalment the whole debt would become due, then, if the creditor omitted to sue within the six years allowed by statute from the data of the first default his remedy to recover not only the instalments but also the whole debt would be barred. Article 75 of the present Limitation Act, has made a slight change, but it also recognises the principle that omission to sue for the first default within the statutory period would ordinarily render the creditor incompetent to recover the whole debt. That principle has no bearing upon the case before us. Here time began to run against the plaintiffs upon the publication of each record, that is to say, upon each invasion of their right, and they do not seek to violate the principle that time must run from the earliest moment. So far therefore as that half of the land in suit which hag been found to be situated within the plaintiffs' purchased lakhiraj estate is concerned, the suit is within time and the decision of Atkinson, J. is, in my opinion wrong. There remains the other half of the property. The position in regard to this is that the District Judge finds that the plaintiffs obtained possession in 1885 and that although the land is situated within the revenue paying mauza of the first party defendants, the plaintiffs have by adverse possession acquired a complete title. It is contended by the defendants that as that title matured not later than 1897, the plaintiffs were bound to bring a suit within six years of 1897 in order to obtain a declaration that they had acquired a prescriptive title by adverse possession.

    6. It is therefore urged that as the present suit was brought in 1907 it is out of time. Now it is quite clear that the plaintiffs were not bound to bring any suit at all for a declaration that they had acquired a prescriptive title. Their suit in 1907 was for the purpose of dispelling the cloud which threatened their title in the shape of the entry in the Record of Rights of 1906. I see no reason why they should not be entitled to a declaration under Section 42 of the Specific Relief Act; for being in possession all that they could demand was a mere declaration. The learned vakil for the respondents is unable to cite any authority which requires every person who has acquired a title by adverse possession to bring a suit for a declaration that he has acquired such title. So far as the entry of 1888-1889 is concerned, the plaintiffs had not at that time perfected their title and consequently the entry, so far as it shewed the title of the first party defendants, was correct and the plaintiffs were not competent at that time to bring any suit for a declaration regarding the correctness of that entry.

    7. Here the cause of action in respect of the entry in the Record of Rights clearly arose when the record was finally published in 1906. The result, therefore is that with regard also to this second half of the land in suit the far of limitation does not apply and the plaintiffs, having brought their suit within six years of the publications of the Record of Rights of 1906, are well within time. The result is that the judgment of the learned Judge of this Court will be set aside and the appeal decreed with costs in all Courts.

    8. Dawson-Miller, J.:— I agree.

    V.S/R.K

    9. Appeal allowed.

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    Comments

    Latafat Hussain v. Kaliker Nand Singh .
    (Mar 4, 1918)